ARTICLES CAN BE VIEWED ONLINE AT WWW.VCBA.ORG

VCBA MISSION STATEMENTTo promote legal excellence, high ethical standards and professional conduct in the practice of law; to improve access to legal services for all people in Ventura County; and to work to improve the administration of justice.

J U N E – T W O T H O U S A N D S E V E N T E E N

PRESIDENT'S MESSAGE 3

BRING YOUR OWN REPORTER 5

BARRISTERS CORNER 8

A VIEW FROM THE WATERSHED 9

DON’T BELIEVE EVERYTHING YOUR INSURANCE ADJUSTOR TELLS YOU 18

EXEC’S DOT…DOT…DOT… 22

ERIK B. FEINGOLD

WENDY C. LASCHER

BRIAN ISRAEL

JAY C. SMITH

MARK E. HANCOCK

STEVE HENDERSON

TRIAL LAWYER OF THE YEAR

JUNE 2017 • CITATIONS 3

PRESIDENT’S MESSAGEby Erik B. Feingold

Lawyers have an image problem.  It seems no matter how hard we try to improve the image of ourselves and our profession, amongst my non-lawyer friends there seems to be an endless stream of anecdotes about the stereotypical greedy and self-serving lawyers bilking their clients, committing misdeeds, and being arrogant.  As part of an ongoing attempt to improve our image, last year the American Bar Association en-dorsed a “National Love Your Lawyer Day” resolution. Here’s part of it:

WHEREAS, Lawyers have con-sistently been the target of verbal bashing, derogatory portrayals and literature is rife with lawyer-bashing dated back hundreds of years; and WHEREAS, A 2013 Pew Research Center survey found lawyers last among ten professional catego-ries for “contributions to society”; WHEREAS, According to a 2014 Gallup survey, the public percep-tion of lawyers on honesty and eth-ics is an unsatisfactory 21 percent; and WHEREAS, The portrayal of lawyers in American popular culture, including on television and cinema, is largely negative, which promotes a negative stereotype of lawyers in society; and WHEREAS, National Love Your Lawyer Day was initiated in 2001 by the American Lawyers Public Image Association as a day to celebrate lawyers for their many posi-tive contributions, and to encourage the public to view lawyers in a more favorable light; and WHEREAS, National Love Your Lawyer Day is celebrated annually on the first  Fri-day of November; and WHEREAS, The American Bar Association has as its mission to uphold the honor of the profession of law and to this end should promote a positive pub-lic image of lawyers in the nation; and WHEREAS, The American Bar Association Law Practice Division desires to promote a positive public image of lawyers by celebrating Na-tional Love Your Lawyer Day...”

The resolution is a step in the right direc-tion, but I doubt it will do much to improve

our image without work from us. That can only be done by first changing the way we behave as professionals towards our clients, each other, and the courts. But the best way to improve our image is to cast ourselves in a more positive public light by being more visible to the public doing good things for society. 

David Ball, the author of the personal injury trial lawyer’s bible,  David Ball on Damages, writes, “You must let the public see that you are different from the indelible stereotypes that many now have on your profession.”  The easiest way we as profes-sionals can do this is to help people in our community by doing good deeds in ways that do not profit us and to find ways to let the community know about those good deeds.

Luckily for us, the Ventura County Bar As-sociation and its members are a step ahead of the game, and I like to think that the VCBA and its members enjoy a highly fa-vorable public perception within our com-munity.  Indeed, baked right into the VC-BA’s Articles of Incorporation is its mission to, among other things, be a source for the “exertion of influence of good on the life of the community.”

Many of us do this by volunteering for community events.  For instance, several members of my law firm and other law

firms throughout the county are members of service organizations such as Rotary In-ternational and Kiwanis International, or-ganizations which do countless good deeds throughout our community and around the world. Many of us volunteer as coaches for our children’s sporting teams and engage in charitable pursuits such as assisting veter-ans, participating in canned food drives, volunteering at homeless shelters, and even traveling around the world at the drop of a hat when disaster strikes to assist with disas-ter relief (think Mark Kirwin).

We all do these things selflessly because it helps others and, in turn, exerts a good im-age of us and the VCBA on our communi-ties. The problem is that because these are selfless acts, we oftentimes do not publicize our good deeds. But we need to. When we don’t let the public know about the good things we as attorneys do in our commu-nity, the image of attorneys as a whole is further tarnished when some bad act by some rotten apple attorney makes the news, which happens far too often.

Luckily we live in a world of social me-dia. We all have websites or LinkedIn ac-counts or Facebook pages where we can and should let it be known to friends, col-leagues, and the public all the good each of us do in our communities. We owe it to the community, our profession, and ourselves.

4 CITATIONS • JUNE 2017

OFFICERS

PresidentErik B. Feingold

President-ElectMark Kirwin

Secretary-TreasurerDouglas K. Goldwater

Past PresidentCharmaine Buehner

Chief Executive OfficerSteve Henderson, CAE

CITATIONS EDITORIAL BOARD

Managing EditorWendy C. Lascher

Assistant EditorCari Ann Potts

Assistant EditorHeather Deffense

Publisher, CEOSteve Henderson

Creative J.P. McWaters

Alice ArnoldRachel ColemanKaren B. DarnallRachael J.KimballPanda L. KrollCarol Mack

Michael L. McQueenRabiah A. RahmanLauren E. SimsMichael R. SmentKathleen J. SmithAl Vargas

CITATIONS is published monthly by the Ventura County Bar Association. Editorial content and policy are solely the responsibility of the Ventura County Bar Association.

Submit all editorial matters to:

CITATIONS1050 S. KimballVentura, CA 93004t: 805.659.6800 f: 805.659.6818wlascher@fcoplaw.com

Submit all advertising, classified and calendar matters to:VCBA4475 Market St. Suite BVentura, CA 93003Attn: Lisette Hernandezt: 805.650.7599f: 805.650.8059e: bar@vcba.orgwww.vcba.org

2017 VCBABOARD OF DIRECTORS

Marc D. AndersonLinda K. AshKatherine Hause BeckerKathryn E. ClunenRachel ColemanMargaret J. CoyleJuan M. HigueraJoshua S. HopstoneThomas J. HutchinsonAmy Dilbeck KiesewetterRod L. Kodman

Kata KimLane J. LopezAlfonso J. MartinezSusan L. McCarthyRabiah A. RahmanJacquelyn D. RuffinKathleen J. SmithJaclyn S. SmithKevin G. Staker Andy H. Viets

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JUNE 2017 • CITATIONS 5

Since 2012, the Ventura Superior Court’s Local Rule 18.00(F) has notified you that official court reporters are not available in most civil and family law matters, and some probate matters. The rule was revised some-what in 2016, but it still requires parties to arrange for privately-paid reporters in most instances. See http://www.ventura.courts.ca.gov/court-reporting.html (but note that it links to an older version of the local rule). The policies in other counties vary, so check their local situations in advance.

Because clients often do not want to pay for court reporters (and many cannot af-ford them), attorneys need to be aware of the risks of proceeding without a reporter.

Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223 is the most recent of a series of cases penalizing a litigant who appealed without providing a reporter’s transcript or an adequate substitute. The plaintiff mistakenly admitted two RFAs and moved for relief from the admissions. A minute order shows that the court grant-ed the motion but set a future hearing on attorney fees at which the court awarded $8,125. There was no reporter at either hearing. On appeal the plaintiff claimed there court had authorized defendant to seek only “nominal” fees for opposing the RFA motion.

The Court of Appeal affirmed because there was no reporter present. “Without a reporter’s transcript or an agreed or settled statement of the proceedings at the two pertinent trial court hearings, we do not know the basis of the trial court’s reason-ing in awarding fees, nor can we assess the merits of plaintiff’s contentions about cer-tain rulings or statements made by the trial court during the hearings in question.” (8 Cal.App.5th at 1228-1229.)

What are the alternatives? Mr. Rhule could have persuaded the trial court to issue a formal order at the first hearing imposing conditions on the fee award, and a formal order at the second hearing spelling out its reasons for the fee award. But an explicit order will not always do the trick. The no-transcript, no reversal rule is not limited to law and motion or attorney fee hear-ings. An appellant who does not provide a reporter’s transcript of trial testimony, or an agreed or settled statement in place of a reporter’s transcript, waives the right

to claim there was insufficient evidence to support the judgment. (E.g., Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187, citing eleven exam-ples of proceedings where a party lost be-cause there was no transcript.) The waiver principle stems from “the cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prej-udicial error must be affirmatively shown.” (Id. at 187.)

One other alternative to a reporter’s tran-script is an agreed statement. (Cal. Rules Ct., rule 8.134.) Since this requires a stipu-lation from opposing counsel about the is-sues and facts, a settled statement is difficult to come by. The rules also permit a party to use a settled statement. (Rule 8.137.) At best, obtaining a settled statement is slow and consumes significant attorney time.

BRING YOUR OWN REPORTER by Wendy Lascher

One possible way to prepare one is from a recording (digital, audio or video) of court-room proceedings, assuming a recording is available. In that case, someone would have to transcribe the recording, or at least lis-ten to and paraphrase it, accurately enough that the trial judge would be willing to use the transcription or summary as the basis of a settled statement.

There are many reasons, political as well as strictly legal, that it is so expensive to obtain a proper appellate record. Maybe a CITATIONS reader will find a way to solve the problem. Meanwhile, litigators beware: Saving money by skipping a court reporter may prove expensive in the long run.

Wendy Lascher, the managing editor of CI-TATIONS, is a State Bar certified specialist in appellate law. She is a partner at Ferguson Case Orr Paterson, LLP

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BARRISTERS’ CORNER by Brian Israel

This year’s “Meet the Bench” MCLE series, presented by Barristers, commenced April 20 with the Honorable Kevin DeNoce speaking to a crowded courtroom 43. The 40-plus Ventura County Bar members and friends were able to soak in Judge De-Noce’s knowledge of civil pre-trial and trial procedural issues.

If you ever have a matter going to trial in Courtroom 43, you are required to sign a copy of his Civil Jury Trial Memorandum. This all-encompassing document is an in-credible resource for those who practice before Judge DeNoce. Rachel Coleman’s article on Judge DeNoce in the March is-sue of Citations tells you more about the memorandum and the man.Thank you for your support, and we hope to see you at the next Barristers event.

Ventura County Legal Aid

As summer begins to round into form, Bar-risters are actively continuing their com-mitments to Ventura County Legal Aid. Though Legal Aid soon takes a break (it runs on the VUSD school year calendar), you will continue to see Barristers volun-teering when Legal Aid begins again in Au-gust. If you have not already volunteered for Ventura County Legal Aid, please con-sider doing so. Not only will it give you the “feel goods” helping members of our com-munity out; it is a valuable legal and social experience. Yes, social! When not helping a client, the networking and chitchatting is top notch.

Save the Date

The Business Litigation section, along with Barristers, is set to host attorney Robert A. Curtis from Foley Bezek Behle & Curtis, LLP on Tuesday, July 11 beginning at 12 p.m. Mr. Curtis will be speaking on trial preparation, including taking effective de-positions in preparation for trial. This is a must-attend, especially if you are thinking to yourself, “my case hasn’t settled, am I ready to go to trial?”

Brian C. Israel is an associate at Norman Dowler, LLP in Ventura. He serves on the Barristers Board as its Secretary.

JUNE 2017 • CITATIONS 9

A view from the watershed I swear it's true, or ought to be. by Jay C. Smith

I hope you had a pleasant July 4th. Here's the third half of my column on the practice of law and small-t truth.

I started this column because of a change in the Uniform Interstate Family Support Act, from requiring affidavits from out-of-state witnesses to allowing the use of declarations under penalty of perjury.

State Headquarters for my employer, DCSS, has a unit that analyzes changes in the law and puts on training sessions for county-level folks to be trainers back at the local offices. I was sent to Sacramento to become such a trainer on UIFSA 2008. The goal at the State level is to make the training simple and clear.

I'm sure you know that sometimes a lawyer goal is to make complicated things simple, but other times it is the lawyer's job to make simple things complicated. I can work at either approach, but my talents tend to lean toward the complicating things side of the profession. "It all depends," is my watch word, and I don't consider "nitpicker" a criticism. I also fully accept something Roger Randall once told me: if you're going to be a real lawyer, don't refer to "loopholes" or "technicalities." They are provisions of the law, and they either apply or they don't.

The folks at the State Headquarters training are smart people, but most of them I encountered were in the job they were because they didn't much cotton to dissention and uncertainty. Of course, dissention and uncertainty—and worse—is the life of attorneys who go to court. I didn't mesh as well as I should have.

Don't get me wrong. I like "simple and clear" well enough; it is just that I am biased toward "accurate," that deadly enemy of simple and clear. As science fiction writer Poul Anderson said, "I have yet to see any problem, however complicated, which, when you looked at it in the right way, did not become still more complicated."

For example, I was not as sanguine as my trainers about the utility of having out-of-state witnesses present declarations signed "under penalty of perjury." I had concerns about complications. If an Ohio resident subscribes under penalty of perjury to a (false) declaration intended to be used in a California court case, do we try the person in California or Ohio or either? Won't the evidence that it was false be in Ohio? Won't the evidence that the false statement was material to the proceedings be in California? (Not every lie in a declaration is perjury; it has to be a material fact in the proceedings.) And so on.

My trainers were too nice (or too naive) to say 'Why are you wasting our time talking about this? No one ever gets prosecuted for perjury in a family law case! Why would it start now, over state lines?"

That might be the truth, but it's not the whole truth. I'll talk about that next column. Have a nice August.

About the author: Jay C Smith is an attorney at the Kern County Department of Child Support Services. He was in private practice for 25 years before that.

Published with permission of the Kern County Bar Association and Executive Director Bobbie Lee.

10 CITATIONS • JUNE 2017

JUNE 2017 • CITATIONS 11

12 CITATIONS • JUNE 2017

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14 CITATIONS • JUNE 2017

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16 CITATIONS • JUNE 2017

You make a claim under your property in-surance for damage to your home. Your insurance company sends people to poke around, cut a hole in your floor, and ex-plore underneath. The adjustor says she’s sorry, but the loss is not covered. She cites to policy language. Do you believe her and let things go?

Adjustors usually aren’t lawyers. They are often employees of the insurance company. The people who looked at the house were paid by the insurer, too. Especially if your loss is large, spending a little money for le-gal help is not only a right, but also a good investment. Sometimes even if a policy can be read in a way to exclude coverage, such language may not be enforceable and/or another interpretation does support coverage.

Vardanyan v. AMCO Insurance Company (2015) 243 Cal.App.4th 779 shows how lawyers can help. Policies are different and there really is no substitute for analyzing them. Knowledge of insurance law is also important.

In Vardanayan, the insured made a claim for damage to a home he rented out. Among other things, floors had sunk. A structural engineer, hired by the insurer, cut a hole in the floor to gain access to the subfloor. He found the bathtub and toilet leaked. He also found leaks in the roof, rain gutters in disrepair, improper construction of the subfloor area (i.e., no proper ventilation), termite damage and decay. The adjustor denied the claim, citing a number of exclu-sions, including ones for: seepage of water from a plumbing system, deterioration, wet or dry rot, settling of floors, water damage, and faulty workmanship, construction and maintenance. Slam-dunk for the insurance company, right?

Some people might jump to the conclusion that the loss is not covered because such things sound a little like maintenance and slow leak issues (items often not covered by property policies), but that’s not read-ing the policy and that’s not looking up the law either.

The insured went to a lawyer and sued for breach of contract and bad faith. The policy was an all-risk policy. It excluded collapse, other than as provided in “Other Coverages 9,” which provided coverage for losses in-volving collapse of a building “caused only

by one or more” of a list of perils, including hidden decay, hidden insect damage, and weight of people, etc.

The insurance company argued that there should be no coverage if the cause of the collapse involved any peril other than those specifically listed. This would effectively put the burden of proof on plaintiff.

Plaintiff’s counsel argued that this was tan-tamount to directing a verdict in favor of the defendant and, sure enough, the court directed a defense verdict.

The Court of Appeal reviewed de novo, and reversed. It pointed out that the apparent conflict between Insurance Code sections 530 and 532, about coverage where there is more than one cause of a loss and where an excluded peril may have contributed, was resolved by Sabella v. Wisler (1963) 59 Cal.2d 21, which articulated the “efficient [proximate] cause” rule:

“ ‘[I]n determining whether a loss is within an exception in a policy, where there is a concurrence of dif-ferent causes, the efficient cause – the one that sets others in motion – is the cause to which the loss is to be at-tributed, though the other causes may follow it, and operate more immedi-ately in producing the disaster. ‘ “

The “efficient proximate cause” has also been called the predominant cause, or the most important cause of the loss. When a covered peril is the efficient proximate cause

of a loss, the loss is covered, regardless of other contributing cause(s); policy exclu-sions are unenforceable to the extent that they conflict with Insurance Code Section 530 and the efficient proximate cause doc-trine. Insurance companies cannot contract around the doctrine. The policy’s “only by” language did not control. (Vardanyan, su-pra, 243 Cal.App.4th at 793.)

The Vardanyan court emphasized that one can’t offer coverage for a certain peril (like hidden decay and/or hidden insect dam-age) and then exclude coverage for a loss caused by a combination of that covered peril and an excluded one, without deter-mining whether the covered peril was the predominant cause of the loss.

The Vardanyan court did more here than just say the loss could be covered. Pointing out that the policy was an all risk policy [where the policy covers all risks save those specifically excluded], the court also stated that the burden was on the insurance com-pany to prove the loss was excluded, rather than on the insured to prove it was covered. (243 Cal.App.4th at 797-798.)

Lawyers, in other words, showed there was more to coverage here than met the eye at first glance.

©2017 by Mark E. Hancock.

Mark E. Hancock is an attorney with offices in Ventura. He enjoys helping people with claims under all types of insurance policies.

DON’T BELIEVE EVERYTHING YOUR (PROPERTY) INSURANCE ADJUSTOR TELLS YOU ©By Mark E. Hancock

JUNE 2017 • CITATIONS 17

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Exec’s Dot…Dot…Dot… by Steve Henderson, M.A., CAE

L i c e n s e Plate of the Month: On a late model Dodge Chal-

lenger piloted by Cameron Norris, a Ca-marillo attorney admitted in May of 2012 with a bar number of 282487… (insert photo here---sent via email 5.22 am) Jurors in Jacksonville, Florida, on May 19 award-ed $100,000 to a woman who said she was severely burned when the lid popped off a cup of Starbucks coffee she received at a drive-through window. Jurors found Star-bucks was 80 percent at fault for the 2014 coffee spill that left Joanne Mogavero with first and second degree burns, reports the Wall Street Journal Law Blog and the Florida Times-Union. The suit had contended that the lids on Starbucks cups are prone to pop off when someone grabs too high on the cup. Naturally, Starbucks will appeal… The Reape-Rickett Law Firm is announcing the addition of John F. Grannis to their outfit. (818) 888-1144 for congratulations…

DK Law Group, LLP proudly welcomes new shareholders Kim Of-fenbacher and A. Scott Brown. Welcome them at (805) 498-1212 or www.dk4law.com… A former judge in North Carolina has avoided prison time for offer-ing cases of beer and $100 cash to obtain his wife’s text messages from an FBI task force officer. Former Judge Arnold Ogden Jones II

of Wayne County was sentenced to proba-tion on May 17, reported the AP. Prosecu-tors said Jones wanted to obtain the texts

because he was suspicious that his wife was having an affair. Go figure… Erwin Chemerinski has been selected as Dean for the University of California Berkeley School of Law. Chemerinsky, the founding dean of the Irvine School of Law, is sched-uled to start July 1. The constitutional law scholar previously served as a professor at Duke University and USC Gould School of Law…

By the time you read this column, you’ll have heard who won the Ven-tura County Trial Law-yers Association’s Trial Lawyer of the Year held May 23. What you won’t know is the list of nomi-nees in its entirety. That prestigious list includes: John Howard, Stephen McElroy, Irwin “Rob” Miller, Trevor Quirk, Barry Reagan and the Team of Dennis LaRo-chelle and John How-ard. Congrats to you all! (insert their photos here---in LSD)… A fed-eral magistrate judge has sanctioned New York City because one of its lawyers made a “pletho-ra” of objections during a deposition. According to a count by the oppos-ing counsel, Amatullah Booth made more than 600 objections, and they occurred so frequently during the eight-hour deposition that they ap-peared on 83 percent of the nearly 400 pages of the transcript. U.S. Magistrate Judge Cheryl Pollak of Brooklyn or-dered the city to pay the deposition costs as a

result of the lawyer’s conduct, reported the New York Law Journal and the New York Post…

Senator Dianne Feinstein’s Judicial Advi-sory Committee process is seeking can-didates for the position of U.S. Attorney. If you know of an individual you believe would serve with distinction, please en-courage them to submit an application. The application is due June 16 and may be had at this website: http://feinstein.senate.

gov/public/index.cfm/applicationd-jud... The lawyer who rolled her eyes and complained that the judge’s ruling was “f---bull---t” has been suspended from practice in Chicago federal court for 90 days. The Northern District of Illinois imposed the suspension on Chicago-area lawyer Alison Mota in an order made public May 19 by the Chicago Tribune. A Nebraska lawyer who responded to his client’s Facebook inquiries with state-ments such as “relax” and “this is compli-cated” has been suspended from practice for 90 days. The Nebraska Supreme Court approved the suspension of lawyer Dustin Garrison in an April 27 opinion noted by the Legal Professional Blog and the Omaha World-Herald. Garrison was accused of failing to adequately answer his client’s questions and to explain what was hap-pening in the client’s PI suit… Southern California Institute of Law Dean Stanislaus Pulle is seeking professors in contracts, legal research and evidence. Contact him at 644.2327.

NOT THAT YOU’LL CARE DEPART-MENT – The California Supreme Court and the State Bar of California have con-cluded that electing district representatives is no longer necessary and that soon all members of the State Bar of California will be appointed by the Governor and the State Supreme Court. This is the beginning of the end of the State Bar as we have known it. Lots of changes heading our way as the State Bar becomes a regulatory agency only.

MARK YOUR CALENDARS: The In-tellectual Property Section, Business Liti-gation Section and the East County Bar Association are presenting “Intellectual Property Enforcement in China and How Best To Do Business” on June 29 beginning at noontime inside the Los Robles Greens, Thousand Oaks. Speaking: Aaron Hurvitz is Of Foreign Counsel with Kangxin Part-ners, P.C. Call Lisette Hernandez at 650-7599, register online at vcba.org, or catch the flyer in this month’s CITATIONS.

Steve Henderson has been the executive di-rector and chief executive officer of the bar association and its affiliated organizations since November 1990. He won the $100,000 pool by picking the Cavaliers and a steak din-ner with Mike Trout and Clayton Kershaw. Additionally, Henderson will share the spot-light with Katy Perry on the popular televi-sion show, American Idol. Henderson may be reached at steve@vcba.org, FB, Twitter at ste-vehendo1, Instagram at steve_hendo, or better yet, 650-7599.

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